Do you need to rebut the presumption of paternity in order to be successful at a request for DNA testing? I argue no, and the recent case of Proulx v. Kelly* considers this point.

Section 8 of the Children’s Law Reform Act (CLRA) sets out 6 situations where a child’s paternity will be presumed. One of them is where there is a child borne to two people who are married. Section 10 of the CLRA states: “On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence.”

The respondent argued that a DNA test could not be ordered unless the applicant rebutted the section 8 statutory presumption in the CLRA.

The court disagreed finding that rebutting the presumption of section 8 CLRA is not a precondition to requesting a DNA sample under section 10 of the CLRA and where there is sufficient evidence to bring paternity into question, the “near 100% accurate advanced science of genetics” of a DNA test justifies granting leave to order a test.

Lesson Learned: Under certain circumstances DNA tests should be granted in estate matters.